Judge Thomas D. Long, Case 22STCV34239 2023-04-13 Tentative Ruling

On October 24, 2022, Plaintiff Auto Soss, Inc. filed an action against Defendant Raysean Smith alleging (1) intentional interference with contract; (2) intentional interference with prospective economic advantage; (3) negligent interference with prospective economic advantage; (4) conversion; (5) trespass to chattel; and (6) violations of Penal Code section 502. On December 20, 2022, the clerk entered default.

On March 17, 2023, Defendant filed this instant motion to set aside default and quash service of summons. On March 30, 2023, Plaintiff filed an opposition. On April 6, 2023, Defendant filed a reply.

Government Code section 70617 (a) states: “Except as provided in subdivisions (d) and (e), the uniform fee for filing a motion, application, or any other paper requiring a hearing subsequent to the first paper, is forty dollars ($40). Papers for which this fee shall be charged include the following: (1) A motion listed in paragraphs (1) to (12), inclusive, of subdivision (a) of Section 1005 of the Code of Civil Procedure.”

Government Code section 70617 (f) states: “Regardless of whether each motion or matter is heard at a single hearing or at separate hearings, the filing fees required by subdivisions (a), (c), (d), and (e) apply separately to each motion or other paper filed. The Judicial Council may publish rules to give uniform guidance to courts in applying fees under this section.”

The Court finds that Defendant’s motion is procedurally improper for filing two motions, but only filing one filing fee. Defendant argues that the motion is proper because Code of Civil Procedure section 418.10 allows a party to join a motion to set aside default or default judgment with a motion to quash: “No default may be entered against the defendant before expiration of his or her time to plead, and no motion under this section, or under Section 473 or 473.5 when joined with a motion under this section, or application to the court or stipulation of the parties for an extension of the time to plead, shall be deemed a general appearance by the defendant.” (Code Civ. Proc., § 418.10, subd. (e).) The Court interprets the statute to mean that parties may also file a motion to set aside default with the motion to quash without it being considered a general appearance. This statute does not allow one filing fee for purposes of considering two motions simultaneously. Thus, the Court finds this a sufficient basis to deny Defendant’s motion. However, the Court will consider Defendant’s motion and make the final entry of the order conditional upon payment of the fees.

The Court SUSTAINS Defendant’s objections to the Kashfian Declaration: ¶¶ 8, 11 and Exhibits 5-8, 10-12. The Court OVERRULES Defendant’s objection to the Kashfian Declaration: ¶ 12.

Defendant brings the instant motion to quash Plaintiff’s service on the grounds that Defendant was improperly sub-served at a private mailbox company before attempting to personally serve Defendant. The rules for serving an individual by substituted service are set forth in CCP §¿415.20. Before service can be effected by substituted service, there must have been three attempts by the process server to serve the individual personally. The diligence requirement is not imposed for effecting substituted service upon a corporate defendant. There is a three step process for serving a defendant by substitute service:

1. Leave a copy of the summons and complaint at the person’s dwelling house, usual place of business or usual mailing address other than a United States Postal Service post office box;

2. Leave a copy of the summons and complaint with “a competent member of the household” or person “apparently in charge,” at least 18 years old who must be told what the papers are;

3. Thereafter mail copies of the summons and complaint to the defendant the place where the copies were left. CCP §¿415.20(b).

Once a motion to quash is filed, the burden is on the plaintiff to prove by a preponderance of evidence that the service is valid and the court has jurisdiction over the person. Until there is an evidentiary hearing, the plaintiff need make only a prima facie showing. (Bolkiah v. Superior Court, (1999) 74 Cal. App. 4th 984, 991.) The burden of showing jurisdiction must be met by competent evidence in affidavits and authenticated documentary evidence. (Ziller Electronics Lab GmbH v. Superior Court, (1988) 206 Cal. App. 3d 1222, 1233.)

In this case, the proof of service, filed on 12/19/22, shows sub-service by a registered agent at: 8549 Wilshire Blvd # 3082 Beverly Hills, CA 90211-3104 (“Wilshire Address”). Delivery was to “Adrianna L. ‘DOE’ (refused to give last name) Agent authorized to accept service.” (12/19/22 POS.) The proof of service includes a declaration of diligence in which the server attests that he attempted personal service on defendant three times to no effect. Plaintiff claims that the Wilshire Address is the address for Defendant’s marketing agency business, Doeraymedia, which is listed on the home page of its website, as his office and usual place of business. (Kashfian Decl., ¶¶ 8, 11 & Exhs. 5-6.) Additionally, the Reyes Declaration provides that Defendant indicated, at the beginning of his employment with Plaintiff, that the Wilshire Address was his home mailing address, and that Defendant did not indicate that his home mailing address was incorrect or that it had changed. (Reyes Decl., ¶¶ 2-4 & Exh. 1.)

Defendant argues that Plaintiff must abide by Code of Civil Procedure section 415.20 (b) and (c) to serve a private mailbox. The Court finds that the Wilshire Address is a private mailbox company, United Mailboxes & Office Solutions. Despite Defendant’s representations that the Wilshire Address was his office and home address, Plaintiff fails to establish that this address was not a commercial mail receiving agency. Plaintiff bears the burden in proving valid service, and it fails to do so here. Defendant claims that the Wilshire Address was a commercial mail receiving agency in which he was a private mailbox customer. Additionally, the fact that Defendant received mail, which was forwarded to his email address, indicates that the Wilshire Address was a company which received third party mail, such that Defendant had a private mailbox at that address and with that company. Thus, contrary to Plaintiff’s assertions, the Court finds that Plaintiff was subject to section 415.20.

Code of Civil Procedure section 415.20 (c) states: “Notwithstanding subdivision (b), if the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency, service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.”

Business and Professions Code section 17538.5 states: Upon receipt of any process for any mailbox service customer, the [commercial mail receiving agency, or] CMRA owner or operator shall (A) within 48 hours after receipt of any process, place a copy of the documents or a notice that the documents were received into the customer’s mailbox or other place where the customer usually receives his or her mail, unless the mail receiving service for the customer was previously terminated, and (B) within five days after receipt, send all documents by first-class mail, to the last known home or personal address of the mail receiving service customer. The CMRA shall obtain a certificate of mailing in connection with the mailing of the documents. Service of process upon the mail receiving service customer shall then be deemed perfected 10 days after the date of mailing. If the CMRA owner or operator has complied with the foregoing requirements and provides to any party participating in a lawsuit involving a mail receiving service customer a declaration of service by mail, given under penalty of perjury along with a certificate of mailing, the CMRA owner or operator shall have no further liability in connection with acting as agent for service of process for its mail receiving service customer.”

Here, Plaintiff fails to show that there was compliance of service under this statute. There is no showing that the summons and complaint was sent to Defendant’s last known home or personal address. In fact, Plaintiff argues that service was not attempted at Defendant’s dwelling home or usual place of abode.

As to actual notice, the Court finds that Plaintiff proffers insufficient evidence of Defendant’s actual notice of the suit. Plaintiff contends that Defendant received actual notice because he admitted in November 2022 that he received Notice of Case Management Conference. (Smith Decl. ¶¶ 4-5, Exhib. A.) This states the case name in which he is named as a defendant along with the case number. Defendant also does not declare that he never personally received the service and summons, nor that he lacked actual knowledge of the action. Even though Defendant argues that he did not understand the contents of the email because he has never been sued before, Plaintiff offers evidence to show that this is not true. (See Kashfian Decl. ¶¶ 14-15.) Additionally, Plaintiff argues that it is likely that Defendant received an email of the summons and complaint as it would have been scanned and emailed to Defendant at the address he provided to United. (Id. at 11.) This fails to show Defendant’s actual notice of his duty to defend. (See Carol Gilbert, Inc. v. Haller (2009) 179 Cal.App.4th 852, 866 [“In this regard, it is not enough that the process inform the defendant of the fact of a lawsuit, or even of a lawsuit in which his name appears. Due process requires notice of ‘the duty to defend.’ (Karlsson v. Rabinowitz, supra, 318 F.2d 666, 668.)”].)

Although actual notice alone is insufficient to automatically find substantial compliance with the service requirements, the Court may find proper service in the event Plaintiff substantially complies with the statute. However, even though there was some degree of compliance with the statutory requirements, Plaintiff fails to show that Defendant received actual notice of the suit.

Thus, the service of summons was not validly effected upon Defendant and the Court did not acquire personal jurisdiction over Defendant.

D. Defendant’s Motion to Set Aside Default is Granted as the Judgment is Void

Given the lack of personal jurisdiction over Defendant, the judgment is void. Thus, the Court GRANTS Defendant’s motion to set aside default.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court